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The History of Trade Unions and its Impact On Today’s Industrial Relations

 Trade Unions

To understand why Industrial Relations is such a heated, divisive issue in South Africa, it’s useful to look at the historical relationship between the man on the street, trade unions and Big Business.

Although trade unions have had a presence in the country since the 1880s, they were initially only for white workers. The key issue behind the 1922 General Miners’ Strike was the job security of white miners who were being replaced at much lower pay by Black miners. This resulted in violent confrontations with the police and military and loss of life. After it was resolved, the Prime Minister at the time, General Smuts lost the next election and even his seat in Parliament.

Although Blacks were not prohibited from joining trade unions, they were not recognised in law and had little power. The South African Congress of Trade Unions was established in 1956 but was driven underground due to apartheid era legislation like the Industrial Conciliation Amendment Act, and brutal police suppression.

In 1977 the Wiehahn Commission recommended that black workers be permitted to join trade unions. CUSA and FOSATU, the fore-runner of COSATU were formed in 1979. From this point, the connection between trade unions and political change became inseparable. With people brought together en masse, and organised, black workers could push for their rights via strikes and other acts of defiance that not only affected their Industry employers, but the economy as a whole. Trade union leaders were active in the United Democratic Front (the internal wing of the ANC) calling for change and putting pressure on employers.

Faced with waves of strikes and protest action and international sanctions, employers in turn pressured the Nationalist Government to change. After years of strikes, protest action, states of emergency and repression under President Botha, change was inevitable. In February 1990 President de Klerk unbanned the ANC, PAC and SACP and releasing Nelson Mandela and other struggle prisoners thus opening the way for peace talks.

In those days, trade unions were a strong force for change. 20 years after the advent of democracy, trade unions are again making their presence felt. They represent the working class and while many may argue that they are representing the elite of the working class in that their members have jobs, there is little doubt that they are pushing for changes to the lives of the poor in our society. Their demands and strategies have to be managed. Failure to do so results in chaos as we have seen in the public sector and in sections of the mining industry.

Bruniquel & Associates was established in 1981 and has been at the forefront of industrial relations through all the changes, advising employers of their rights and training management in how to build positive relationships with their employees in difficult times. B&A published the first series of industrial relations training videos in 1983. Since then it has developed the most comprehensive series of labour relations training courses on the market.

Industrial Relations courses offered by Bruniquel & Associates (B&A) are designed to defuse the tension and build positive relationships between employers and employees. Good leadership leads to good employee relations. Over 32 years these veteran industrial relations, human resources and training consultants have honed a highly effective, proactive and practical approach to developing leadership and improving relationships in the workplace. B& A is fully accredited by the Services Seta to provide training courses which enables employers to gain BBBEE points and claim tax rebates.

Click here for a complete list of B&A’s Industrial Relations & Leadership courses. These programmes include a series on practical leadership and communication skills; the disciplinary process from corrective action, formal referrals and disciplinary enquiries to representing parties in an arbitration; managing conflict and grievances; practical negotiation skills and understanding all aspects of labour legislation. They are designed to empower line managers, supervisors and employee representatives (shop stewards and EE Committee members), so that knowledge is transferred back to the workplace at all levels.

What do you do when an employee refuses an instruction?
Common law requires employees to carry out the instructions of their employer and in addition to that, most employment contracts include a clause to the effect that:

“The Employee shall notwithstanding the above job title, be obliged to carry out any lawful instruction given to him / her by the Employer even though this may not be related to his / her position.”

In other words, as long as the instruction is lawful, the employee is contractually bound to carry it out. Failure to do so constitutes insubordination and can result in summary dismissal (i.e. dismissal without notice or notice pay).

It might look straightforward but unfortunately these situations often go awry for employers, especially when managers become angry.

Calling the boss an idiot found not to be grounds for dismissal
For example, a number of years ago in a well reported case, a General Manager was dismissed for insubordination after he had called his new Managing Director an idiot. It transpired that the Managing Director had wanted to retrench employees immediately, without following the required LRA procedure.

The GM had refused to carry out the instruction, calling his boss ‘an idiot’ in a heated discussion. This ultimately led to the GM being dismissed for insubordination and him referring his case to the Industrial Court. The Court found the dismissal to have been unfair and awarded compensation. In its judgement, the Court inferred that the MD’s conduct had indeed been idiotic because the he had expected the GM to carry out an unlawful instruction.

Similarly, a manager may not expect an employee to carry out a task which would expose him or her to danger not normally connected with the performance of his / her duties or which could result in the employee facing disciplinary or criminal charges.

The difference between insubordination and insolence
The Oxford dictionary defines insubordinate as ‘disobedient; rebellious’. Insubordination must be distinguished from insolence which is defined as ‘offensively contemptuous or arrogant; insulting’. While insolence may well result in dismissal, it is not considered as serious as insubordination. This is because insubordination goes to the root of the employment relationship. The employer pays the employee to carry out instructions. If the employee refuses the whole employment relationship breaks down.

‘It’s not my job’ is no excuse but look for the underlying cause
Refusals to carry out instructions because ‘it’s not my job’ usually stem from employees being misinformed or misled by others, especially in the lead up to strikes. Employees may also refuse to carry out instructions if they feel that they are being singled out unfairly or are being overloaded with work. There is usually a lot of underlying emotion involved in these situations and it is advisable therefore to treat these situations sensitively.

Employee’s point of view
From an employee’s point of view, if you feel aggrieved by an instruction, rather than put yourself at risk, comply with the instruction as best you can and then lodge a grievance. DO NOT REFUSE to carry out the instruction, no matter how right you think you are, as it could cost you your job.

From the employer’s or manager’s point of view, these are really ‘no-win’ situations so they need to be handled carefully.

GUIDELINES FOR HANDLING A REFUSAL TO CARRY OUT AN INSTRUCTION:

1. Explain why the task is necessary and give the employee the instruction in a clear and unambiguous manner e.g. “I am giving you a lawful instruction to ……………….”
2. If the employee refuses, ask why? Listen to understand – not to respond.
3. If there is no good reason for the refusal, explain that refusal to carry out the instruction is a serious breach of the employee’s contract of employment.
4. Explain the consequences of continuing to refuse to obey the instruction: e.g. “Your refusal / failure to obey this instruction constitutes a serious disciplinary offence and will result in a disciplinary enquiry which COULD lead to your dismissal.”
5. Give the employee a deadline by which to carry out the instruction. This should be reasonable and allow a cooling off period for the employee to reconsider his / her actions.
6. Put the instruction in writing and ask the employee to sign acknowledgement of receipt. If the employee refuses to sign, call a witness, read out the instruction and ask the witness to sign.
7. If the employee has not carried out the instruction by the set time limit, suspend the employee from work and tell him / her to report to you the following morning. This will allow a further ‘cooling off period’ for the employee to consider the consequences of failing to carry out the instruction.>
8. The next day establish whether the employee has changed their mind. If so, issue the employee with a written warning (which may be a final warning depending on the circumstances). Allow the employee to go back to work but make sure that the employee actually carries out the instruction.
9. If the employee still refuses to carry out the instruction, issue the employee with a notice of a disciplinary enquiry and suspend the employee from work. The charge will be Insubordination – failing to carry out a lawful instruction in that you ……. (Details of the instruction). The suspension must be on full pay and the employee must be given at least 24 hours’ notice of the enquiry (48 hours is preferable).

If a process like this is followed and the instruction is lawful and reasonable, the employee will have only himself to blame for his dismissal. In the event of the employee contesting the dismissal, it can be easily justified by the employer.